So What DMCA Exemption Requests Got Rejected?

from the the-flipside dept

Like many others yesterday, we covered the news that (surprisingly) the US Copyright Office and the Librarian of Congress granted some consumer friendly DMCA anti-circumvention exemptions for things like jailbreaking smartphones. But, very little coverage has been paid to what exemptions were requested and rejected. First up?

Subscription based services that offer DRMprotected streaming video where the
provider has only made available players for a limited number of platforms,
effectively creating an access control that requires a specific operating system
version and/or set of hardware to view purchased material; and Motion pictures
protected by antiaccess measures, such that access to the motion picture content
requires use of a certain platform.

Specifically, this involved someone who asked for an exemption to, say, watch Netflix streaming, with a legit Netflix member account, on a non-approved platform, such as Linux. This was lumped in with another proposal to not just watch streaming content on Linux, but DVDs on Linux, where there might not be a CSS-licensed video player. Such requests have been tried in the past, and basically, the rulemaking effort here said "been there, rejected that," followed up with a "if you want to view the content, buy a "reasonably priced alternative" technology platform. How nice of them.

Lawfully purchased sound recordings, audiovisual works, and software programs
distributed commercially in digital format by online music and media stores and
protected by technological measures that depend on the continued availability of
authenticating servers, when such authenticating servers cease functioning
because the store fails or for other reasons; and

Lawfully purchased sound recordings, audiovisual works, and software programs
distributed commercially in digital format by online music and media stores and
protected by technological measures that depend on the continued availability of
authenticating servers, prior to the failure of the servers for technologists
and researchers studying and documenting how the authenticating servers that
effectuate the technological measures function.

This seems like it should be a no-brainer for exemption. There are so many stories of various online music stores that had DRM that required "phoning home." These services died, and eventually the DRM servers were turned off leaving consumers blocked from accessing music they had legally purchased.

But, no... The Copyright Office shot that one down by saying that, Chris Soghoian, who made this request, failed to show "that the prohibition on
circumvention of access controls either has produced, or is likely to produce,
any adverse effects on noninfringing uses of the proposed class of works." Basically, the Copyright Office notes that, so far, in the cases where such servers have been shut down, the companies offered "full refunds" to buyers, so no harm, no foul. Of course, it brushes over the fact that it took enormous consumer backlash to force this response. So, because a bunch of complaining consumers get companies to pay up if they want to turn off their DRM servers, no circumvention should be allowed? That seems backwards.

Software and information recorded, produced, stored, manipulated or delivered
by the software, that a forensic investigator seeks to copy, activate, or
reverse engineer in order to obtain evidence in a court proceeding.

This, again, seems like a reasonable request. Forensic investigators may need to access and review data or software that is locked down with DRM or other technical protection methods. Making it infringement just to get around those protection measures, even for legal forensic investigations doesn't make much sense. But, of course, to the Copyright Office it's perfectly reasonable. Basically, the Copyright Office says "well, there's no evidence that this has ever been a problem, so why worry?"

Audiovisual works delivered by digital television (DTV) transmission intended
for free, overtheair reception by anyone, which are marked with a broadcast flag
indicator that prevents, restricts, or inhibits the ability of recipients to
access the work at a time of the recipient’s choosing and subsequent to
the time of transmission, or using a machine owned by the recipient but which is
not the same machine that originally acquired the transmission.

Here, again, the Copyright Office basically says, "hey, there's no broadcast flag mandate, so why worry?" It claims that it's "highly speculative" as to whether or not broadcasters and copyright holders would look to use broadcast flags to restrict content. Of course, this ignores that various attempts have been used to do that, and now with things like Selectable Output Control, it's likely to happen again.

Audiovisual works embedded in a physical medium (such as Bluray discs) which
are marked for downconversion or downresolutioning (such as by the presence of
an Image Constraint Token ICT) when the work is to be conveyed through any of a
playback machine’s existing audio or visual output connectors, and
therefore restricts the literal quantity of the embedded work available to the
user (measured by visual resolution, temporal resolution, and color fidelity).

Again, the Copyright Office is quick to recommend against including this, noting that there's no clear adverse impact on users or a clear "noninfringing use."

As mentioned in the original post, the Copyright Office also wanted to reject allowing ebooks to be read aloud for the blind, but the Librarian of Congress overruled the Copyright Office on that one point.

And, there you go. Many of the rejections were basically over situations where the Copyright Office said there was no real evidence of an actual problem, so nothing to worry about. Still, just the fact that many of these situations had to be proposed and were rejected shows how ridiculous copyright law is today. The fact that we have to go begging to the Copyright Office every three years for simple exemptions like this, which can (and often are) rejected, is not how modern society should work. Technology is changing how people can and do interact with content. This whole process (even the fact that it only happens every three years) has the whole thing backwards. We shouldn't have to ask for permission to use technology to do what it allows.

Re:

iPhone ruling

I'm not sure if the comments touched on this yesterday, but the fact that users can now legally jailbreak their iPhones while Apple can still legally remotely access said jailbroken iPhone to "brick" it is just ridiculous.

Screw it all.

My exception request would be:

Lawfully purchased digital content restricted in any way that prevents the user from using said content in any legal way the user desires.

Until that happens they can take the copyright law and shove it. Oh, and maybe when copyright doesn't last long enough to see the artists grandchildren die of old age before it might, maybe, in some limited waym be in the public domain. Then maybe I'll give a rats ass.

Win/Win

"This, again, seems like a reasonable request. Forensic investigators may need to access and review data or software that is locked down with DRM or other technical protection methods. Making it infringement just to get around those protection measures, even for legal forensic investigations doesn't make much sense."

+1000 Internets to the first 'pirate' service to use DRM against the RIAA/MPAA by suing their forensics team for copyright infringement under the anti-circumvention clause of the DMCA.

Re: Win/Win

The forensic teams would just claim to have used router information to determine IP addresses. It would be pretty easy to setup logs on the router to record IP addresses for activity.

No need to break any form of DRM to get access, and all they would need to do is sign up for an account on the tracker, and that's going to end up being pretty easy too. They have already gotten into the private trackers out there.

Re: Re: Win/Win

"The forensic teams would just claim to have used router information to determine IP addresses. It would be pretty easy to setup logs on the router to record IP addresses for activity."

I was thinking more along the lines of encryption of the song/movie to require a password (easy to do with a RAR file, for example).

Without circumventing the encryption (cracking the password), they can't prove the song or movie is the same work that is covered under copyright. Properly encrypted files are nearly indistinguishable from random noise.

Re: Re: Re: Win/Win

"Without circumventing the encryption (cracking the password), they can't prove the song or movie is the same work that is covered under copyright."

I was under the impression that this level of evidnece was not obtained. They simply send a letter to every IPAddr in the swarm. They used to at least look at the file name being downloaded but I dont recall actual verification of the file contents. One would think this would be required evidence in order to obtain a conviction, I guess civil court does not. Why do they press for this to become a criminal matter when the evidence required for convistion would become more than just guessing.

wait, their solution to no legal way to watch DVD's/Blu-ray on Linux is to use another OS? How fucking retarded are these people? So let's see, not including the cost of the hardware, to watch a DVD, for someone who uses Linux 100% of the time would have to buy the 20$ DVD, buy a 99-200$* OS and possibly a 20-40$ codec just to watch the movie? F-ck that to hell.
I really hate people sometimes.

*of course if you are buying OS X, there is a good chance you already have OS X (remember, hackintoshes are still illegal), so that is a moot point

Re:

There's still the option of a standalone DVD or Blu-ray player, and a television... Not that it really makes it any better, but I'd rather not watch DVD's than put Windows back on my computer, and I'd prefer to keep watching DVD's and keep personally boycotting Microsoft (work computer still has XP...)...

What the Copyright Office has done deserves all of the mockery contained in most of the above comments. In no instance should the absence of evidence produced during the rulemaking process ever be allowed to stand in the way of reasoned conclusions.

Newspaper analogy

Suppose you buy a newspaper and on the front page there is printed "by turning the pages you agree only to read the inner pages by glasses provided by company X and not to tell the content to anyone else who does not legally own such glasses"
That is what the DMCA is al about, over protecting the market of those who can afford to pay good lobbyists.

This "copyright office" is something all americans should be ashamed of.
I'm very proud of not being american, and living in a country where such anomalies doesn't reach citizens.
"Forbid to read e-books aloud for blind people". Who in Earth wouldn't be terrified by such abomination?!?!?
Is this really a country you want for your children?!?

oh great one.....enlighten us what is the name of your country??? Nirvana?? where do you live, America is still the greatest country on the planet, why everyone wants to be us, and the rest hate us, we aren't perfect, but we are better

I don't see natural disasters going on in other country's and they instantly beg Russia or Germany for help, they beg us, most time they don't have to ask we are sending help, then they bitch we didn't send them "enough" help, when we are one of only a few countries doing anything to help them at all

....the Copyright Office basically says, "hey, there's no broadcast flag mandate, so why worry?" It claims that it's "highly speculative" as to whether or not broadcasters and copyright holders would look to use broadcast flags to restrict content.

Wrong! Various broadcasters have been using broadcast flags as DRM for a while. Back when I had HBO, I tried to time-shift episodes of True Blood for later viewing and was met with a "Cannot Record due to content controls" message on my recorder.

They have no excuse for this decision. A quick Google search would have given them all the evidence they needed.